Karnataka High Court
State Of Karnataka vs Shivarama on 18 December, 2023
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CRL.A No. 1337 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1337 OF 2016
BETWEEN:
STATE OF KARNATAKA,
REP. BY THE POLICE INSPECTOR,
MANGALURU RURAL POLICE STATION,
KULSHEKAR - KAIKAMBA,
MANGALURU, D.K.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 575 005.
...APPELLANT
(BY SRI. M.R.PATIL, HCGP)
AND:
SHIVARAMA,
AGED ABOUT 42 YEARS,
Digitally signed
by SANDHYA S S/O THIMMAPPA SAPALYA,
Location: High R/AT OKKETTHURU MOODA HOUSE,
Court of
Karnataka VITTLA KASABA VILLAGE,
MANGALURU, D.K. - 575 005.
...RESPONDENT
(RESPONDENT SERVED & UNREPRESENTED)
THIS CRL.A. FILED U/S 378(1) AND (3) CR.P.C PRAYING
TO GRANT LEAVE TO APPEAL AND SET ASIDE THE JUDGEMENT
AND ORDER OF ACQUITTAL DATED 18.04.2016 PASSED IN
C.C.NO.1451/2014 BY THE J.M.F.C.(III COURT), MANGALURU,
D.K., ACQUITTING THE RESPONDENT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 279 AND 304(A) OF
IPC AND ETC.
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CRL.A No. 1337 of 2016
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the
judgment of acquittal passed by the JMFC (III Court),
Mangaluru, D.K. in C.C.No.1451/2014 dated 18.04.2016
(for short hereinafter referred to as 'trial Court').
2. The rank of the parties in this appeal are
referred in the same rank as referred by the trial Court.
3. Brief facts of the prosecution case are that:
On 16.03.2013 at about 1.50 p.m. the accused being
the driver of lorry bearing registration No.KA-19-A-3465
drove the same from Pumpwell towards B.C.Road in a rash
and negligent manner, so as to endanger the human life
and at Kankanady Village, Pumpwell, Mangaluru Taluk
dashed to pedestrian Damodara Naik i.e. the elder brother
CW.1/PW.1, who was walking on the northern side of the
road. Due to which, the said Damodara Naik sustained
severe injuries on his back head, right shoulder, chest,
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stomach, waist, back, left cheek, chin. Then he was shifted
to Indian Hospital, but on the same day at 3.00 p.m. he
succumbed at the hospital due to fatal injuries. Thus, the
accused committed the offences punishable under Sections
279 and 304(A) of IPC.
4. After taking cognizance, a case was registered
in C.C.No.1451/2014. Summons was issued to the
accused. In response to summons, accused appeared
before the trial Court and was enlarged on bail. Substance
of plea was read over and explained to the accused.
Accused pleaded not guilty and claimed to be tried.
5. To prove the case of prosecution, seven
witnesses were examined as PWs.1 to 7 and marked 14
documents as Exs.P1 to P14. On closure of prosecution
side evidence, statement of accused under Section 313 of
Cr.P.C. was recorded. Accused had totally denied the
evidence of prosecution witnesses, but he did not choose
to lead any defence evidence on his behalf. Having heard
the arguments on both sides, the trial Court acquitted the
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accused. Being aggrieved by the impugned judgment of
acquittal, the State has preferred the present appeal.
6. Sri.M.R.Patil, learned High Court Government
Pleader for the appellant/State has submitted his
arguments that the impugned judgment and order of
acquittal recorded by the trial Court is opposed to law and
facts and probabilities of the case. The trial Court has
failed to appreciated the evidence of PWs.1 to 3 and PWs.4
to 7 in accordance with law and facts. The reasons
assigned by the trial Court are erroneous. The order of
trial Court is manifestly unjust, unreasonable and it has
ignored the evidence and misread the material on record
and documents. The trial Court has not raised a proper
probabilities and inference on the basis of evidence on
record. On all these grounds, he sought for allow this
appeal.
7. Despite service of notice to the
respondent/accused, he remain unrepresented. Hence,
arguments on respondent's side is taken as nil.
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8. Having heard the arguments of learned HCGP
and perusal of records, the following points would arise for
my consideration:
1. Whether the State/appellant has made out
grounds to interfere with the impugned
judgment of acquittal?
2. What order?
9. My answer to the above points is as under:
Point No.1: In the negative;
Point No.2: As per final order.
Regarding Point No.1:
10. As could be seen from the charge sheet, there
are 15 witnesses in the charge sheet. Out of them, PW.1
is the complainant, PWs.2 and 3 are the eye witnesses to
the alleged incident, PW.4 has attested to the spot
mahazar, PW.5 is the owner of the lorry bearing
registration No.KA-19-A-3465. PWs.6 and 7 are the
investigating officers who speak about their respective
investigations. PW.1 is not an eye witness to the alleged
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incident. With regard to eye witnesses PWs.2 and 3 are
concerned, in paragraphs 13 to 19, the trial Court has
observed as under:
"13. The CW.2 is cited as an eye witness who
examined as PW.2 who at his chief examination
specifically admits that the deceased was his
relative and it can be gathered from his chief
examination that he is a chance witness. The chance
witness is always weak type of evidence. Further the
chance witness is a close relative of the deceased.
His chance of presence in the spot is highly
doubtful. But anyhow it is the duty of the court to
meticulously peruse the evidence of PW.2 to trace
out the truth. He at his cross examination admits
that the deceased wife has filed a case for
compensation. He also admits that at the time of
incident the lorry was fully loaded. He was at 30 feet
away from the incident place. Immediately after
accident many people gathered and some public
have made phone call to police and public have
shown Accused person to police in the spot.
Admittedly he has not shown the Accused person to
the police. He also admits that the incident place is
a junction place and he further admits that actually
he do not know which portion of the lorry hits the
deceased and he further admits that always the
traffic police on duty in the incident place and
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further he on suggestion stated that the deceased
might have an habit of drinking alcohol, but has not
denied that the deceased having habit of drinking
alcohol.
The PW.2 stated in his chief examination that
"ಈ ೇ ನ ಮೃತ ಾ ೕದರ ಾ ಪ ಚಯ ಇದರು. ಅವರು
ನನ ಾವ"
The PW.2 admitted in his cross examination
conducted by the learned counsel for the
Accused that "ಮೃತ ೆ ೆಂಡ! ಇ ಾ"ೆ. ಅವರ ತಮ#
ೋಡು%ಾ&"ೆ. ಮೃತರ ೆಸ ನ() ಪ ಾರ ಸ() ೇ ೆ. ಾನು
*ಾ ಯನು ದಲು 30 ಅ, ದೂರ-ಂದ ೋ, ೇ ೆ. *ಾ ಯ()
*ೋ,ತು& *ಾ ೆಸರು *ೇ, ಆ/ 0ಾ!1ಾ. 3ೕ(ೕಸ ೆ ಅ*ೆ)ೕ
ಇದ ಜನರು 5ೕನು 1ಾ, ಾ"ೆ. ಅಪ6ತ7ಾದ ಕೂಡ*ೇ ಜನರು
9ೇ ಾ"ೆ. *ಾ :ಾಲಕನನು ಸ;ಳದ() 3ೕ(ೕಸರು %ೋ ದರು.
ಾನು 3ೕ(ೕಸ ೆ :ಾಲಕ ಮತು& *ಾ ಯನು ಸ;ಳದ()
ೋ, ೇ ೆಂದು ೇ= ೆ >ೕ, ೇ ೆ. ಪಂ?7ೆ@ ರ9ೆ& ತುಂ ಾ ಜನ
>Aಡ ರ9ೆ& ಎಂದ"ೆ ಸ . ಮೃತರು ಮದ Cಾನ 1ಾಡು!&ರಬಹುದು.
13 ಟG ತುಂAರುವ *ಾ ಾವH ೇಳIವ ೕ!ಯ() 7ೇಗ7ಾK
ೋಗಲು 9ಾಧ Mಲ) ಎಂದ"ೆ ಸ ಯಲ)"
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14. The PW.3 is another eye witness who is also a
chance witness. At his cross examination he stated
that he was working in the Father Muller's hospital
since 15 years. His time of working is 8.00 am to
5.00 p.m. on the date of incident i.e. 16.3.2013 he
was on duty. The time of incident was 2.00 p.m. the
2.00 p.m. is his working time. Why he was present
in the spot has not been properly explained. Further
at his cross examination he admits that the
deceased was his childhood friend. Before his visit to
spot many people gathered there, he saw the
deceased Sri.Damodar was under lorry and he
further admits that the people gathered there shown
the accused, it means actually he has not seen the
incident. If actually he has seen the incident he
must have the personal knowledge of accused and
manner of accident. The PW.2 specifically admits
that the traffic police men always on duty at
Pumpwell circle but PW.3 stated that he does not
know whether traffic police were working at
Pumpwel. Further he admits at his cross
examination actually he do not know what has been
written in his 161 statement. More over pw3 is a
chance witness. On perusal of his chief as well as
cross examination, his presence in the scene of
occurrence creates doubt. The PW.1 to 3
categorically stated that many public have seen the
incident but IO has not made efforts to secure those
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independent eye witnesses. Pw1 and 2 are the blood
relatives of deceased and pw3 is child hood friend of
deceased, apart from these witnesses many other
natural witnesses when available IO could have
secure those independent natural witness to remove
the reasonable doubts.
The PW.3 stated in his examination that "ನನ ೆ
ಮೃತ ಾ ೕದರ ಾ ಪ ಚಯ ಇದರು. ಾನು ಮ ೆ ೆ
ೋಗಲು ಬN ¸ÁÖ¥ï£À°è ಾಯು!& ೆ.
The PW.3 admitted in his cross examination
conducted by the learned counsel for the
Accused that "£Á£ÀÄ 15 ªÀµÀðUÀ½AzÀ ¥sÁzÀgï ªÀÄÄ®ègïì
D¸ÀàvÉæAiÀÄ°è PÉ®¸À ªÀiÁqÀÄvÉÛãÉ."
15. The PW.4 is a spot mahazar witness. He at his
cross examination specifically admits that on the say
of police he has become witness in the present case
he has not seen the accused person.
16. The PW.5 is the owner of the offending lorry has
completely turned hostile to the prosecution case.
The learned APP permitted to cross examine PW.5.
At his cross examination also nothing has been
elicited to believe the Ex.P11 and Ex.P12.
17. The PW.7 who registered the case he at his
cross examination admits that before the
complainant came to police station and lodged
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complaint he has no other any intimation about this
incident and further he admits that he was seeing
the accused person before the court for the first
time, prior to that he has not seen the accused
person anywhere. As per PW.2 the incident was
informed to the police station through phone and
police immediately visited the spot. But as per PW.7
they have no intimation about this incident till
complainant came to police station at evening they
have not visited the spot and they have not helped
the public to take the injured to the hospital which is
totally contradictory statement to the statements of
eye witness.
The PW.7 admitted in his cross examination that
"(Oತ ದೂರು Pೕಕ ದ ದಲು ನನ ೆ ಈ ಘಟ ೆ ಬ ೆR
SಾವH ೇ 1ಾT! ಇರ(ಲ). ಾನು ಈ ಪUಕರಣದ ಆ"ೋWಯನು
ಇ ೇ ದಲ ಾ ೋಡು!& ೇ ೆ ಎಂದ"ೆ ಸ ."
18. The PW.6 is the second I.O. who has conducted
major portion of investigation and filed charge sheet
against the accused person. He also at his cross
examination specifically stated that before receiving
the file he has no information about this incident. As
per PW.1 the incident place is little bit ascending.
But as per I.O. PW.6 the Incident place is an equal
and flat road, the Incident is neither a ascending nor
descending, it is a plain and level road. When I.O.
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has seized the lorry at least he could not made
efforts what was loaded in the said lorry. On
suggestion he specifically stated that actually he
does not know what loaded in the said lorry. His
evidence creates doubt about his visit to the spot. If
he could have seen the spot his evidence may
corroborate with the evidence of PW.1.
19. Under the above said facts and
circumstances the prosecution has utterly failed to
prove the manner of accident and also to connect
the accused to the alleged incident beyond
reasonable doubt. There is no cogent evidence
before the court to believe the charge U/s 279 of
I.P.C. and eye witnesses are very doubtful, their
presence in the scene of occurrence creates strong
doubt for reasons stated supra. Hence, the accused
is always entitled for the benefit of doubt.
Accordingly, I answer this Points No.1 and 2 in the
"Negative"."
11. On re-examination/reconsideration and re-
appreciation of the evidence on record, I do not find any
illegality/infirmity in the impugned judgment of acquittal
passed by the trial Court. Hence, I answer point No.1 in
the negative.
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Regarding point No.2:
12. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
1. The appeal is dismissed;
2. The impugned judgment of acquittal passed
by the JMFC (III Court), Mangaluru, D.K. in
C.C.No.1451/2014 dated 18.04.2016 is
hereby confirmed;
3. Registry is directed to send a copy of this
judgment along with trial Court records to
the concerned trial Court without causing
any delay.
Sd/-
JUDGE
PGG
